Ireland: The Abortion Bill passes the first house

On 6 December 2018, the lower house of the Irish parliament passed the Regulation of Termination of Pregnancy Bill at midnight with a vote of 90 for, 15 against, and 12 abstentions, after hours of debate and consideration of 60 amendments, almost all of which were voted down with large majorities. Minister of Health Simon Harris remained in strict control throughout the process, rejecting amendments by pro-choice members to make the bill less restrictive and by conservative/anti-abortion members to make it more restrictive, claiming throughout that he was determined to give the people the bill he promised before the referendum on the 8th Amendment to the Constitution in May. A small number of conservative members fought till the end, talking at length each amendment. Then, finally, it was passed. It moved the very next morning to the upper house. Ivana Bacik, a Labour Party member in the upper house, said she thought it very likely that the bill would become law before the holiday recess later this month.

The Irish press and media have been full of articles on an almost daily basis. The bill represents the conclusion of a process that started with the death of Savita Halappanavar in October 2012, the passage of a highly restrictive abortion law in 2013 whose lack of value was proven with the abusive treatment of Ms Y in 2014, who was denied a legal abortion even though she met all the conditions. Then in 2017, a Citizens’ Assembly and in 2018 the referendum showed that Ireland had made a major shift in its views on abortion in a very short space of time.

On 8 November, after three days of intense discussion, the Select Committee on Health had examined 180 amendments to the bill, none of which was accepted by Minister for Health Simon Harris. Then it went to the full lower house of the parliament, where it was debated until it was passed on 6 December.

Mr Harris had long promised to have services up and running by January 2019. In spite of many nay-sayers claiming he couldn’t possibly manage this, it looks as if he will make it. He also announced that he would introduce separate legislation to create safe access zones for abortion services early next year.

Dr Peter Boylan a retired obstetrician, was appointed to oversee the preparations for abortion services. He said that as long as the bill was passed before the holidays, the services should be able to start in January. He added that it was understandable that there is anxiety among doctors who will deliver abortions because it is a new service but that “will settle down”. Asked about the clinical guidelines, which doctors insist are essential to direct them on providing safe care, he said: “They are close to finalisation.” GPs will be provided with access to private ultrasound scans if needed, he said. Asked about the impact of abortions on waiting lists at maternity hospitals and regular gynaecological services, he said most early terminations that are surgical can be done under a local anaesthetic on an outpatient basis. “The actual numbers interfering with [hospital] waiting lists are likely to be small and, if there is an imposition, things like the National Treatment Purchase Fund could be used for women who are on the waiting list.”

He was also quoted as saying: “The main thing is that women will not have to travel to England any more, and will be able to access services here.”

The New York Times meanwhile quoted Mr Harris as saying: “I look forward to a time, not far away now, when we will be able to assure women experiencing crisis pregnancies that they will be looked after here at home, where they need not fear that they will be stigmatized for their choices or lack the support they and their families need from our health service.”

Does he have reason to be so sanguine? Exit polls during the referendum in May showed that 62% of people cited a woman’s right to choose as the motivation for their votes, and 55% cited women’s health. These were the electorate’s two main priorities. There was no ambiguity about what the people wanted. Whether Mr Harris has actually delivered on both these priorities and whether his optimism is warranted, given some of the actual details of the bill, is less clear.

The bill

The bill legalises free access to abortion up to 12 weeks. After that, it permits abortion only in cases where the woman is at risk of serious harm or death, or where a doctor has given a diagnosis of a fatal fetal abnormality. The bill anticipates that most abortions up to nine weeks of pregnancy will be with medical abortion pills, prescribed and monitored by general practitioners. Beyond that time, women would have to go to hospital obstetrics departments (mostly on an outpatient basis). The bill sets a mandatory three-day waiting period between the request for abortion and access, forcing women to attend two appointments, the second one without any clinical justification. This has been described as a political concession, but it really punishes women.

Other negative aspects of the bill, in addition to the waiting period, include continuing unnecessary criminalisation, treating the patient’s views of risks to her health or of the probable gestational date as clinically irrelevant, creating an unworkably high bar for access to abortion where the woman’s health is at risk, and other regulations that seem designed primarily to create barriers. Another particularly useless rule is that the doctor who sees a woman for the first appointment to request an abortion must be the one to see her again three days later, e.g. to give her the prescription for medical abortion pills. In a GP practice setting, this ignores the team nature of the work, the fact that not all GPs work every day and that they may get ill or be away. Yet an amendment by Simon Harris to revise this and allow a second doctor to see the woman, which he finally acknowledged as sensible, garnered opposition.

Attempts by several members of parliament to remove the maximum 14 years’ prison sentence that can be used to criminalise doctors, even if they have acted in good faith, did not succeed. Simon Harris claimed that criminalisation remained necessary to protect women from forced abortions, but this is a spurious argument. He also said women would never be prosecuted under it. Doctors’ expressed fear of possible prosecution under this clause was raised, but also failed to lead to change. Independent member of parliament Clare Daly argued that pro-choice supporters will have failed if criminalisation is not removed, but it remains in the bill nonetheless. The only concession that Harris made was to say that it could be reconsidered during the three-year review of the workings of the law.

Conscientious objection: doctors’ views

The bill recognises the right of clinicians to refuse to provide abortions on moral grounds, but it requires them to refer patients to others who are willing and to tell women that they do have a right to see someone willing to provide the service. While the government and medical organisations have no plans to publish lists of primary care doctors and obstetricians who have a conscientious objection to abortion, one doctor said he believed such lists would quickly emerge on social media. Any official list-making meanwhile is being left to individual GP practices and hospitals.

There are quite a few Irish GPs who are against providing abortions and they have made their dissatisfaction heard, though they did not see changes to the bill following from their complaints. Dozens of GPs were said to have walked out of a 2 December emergency general meeting of the Irish College of General Practitioners, claiming that plans for the new service were in “serious crisis”. The tenor of the meeting was described to one journalist as “bitter, chaotic, uncivil, vitriolic and stormy”. Some 350 nurses and midwives signed a petition calling for their right to opt out too.

Deputy Kate O’Connell, who had been a member of the parliamentary Committee on the Eighth Amendment said: “There is a lot of scaremongering going on around medics and their right to opt out. Let me be clear; the law on abortion is changing. The law on conscientious objection is not. Doctors, nurses and midwives can conscientiously object to provide the service but they must offer information to the woman to ensure she receives adequate care. There is also currently an attempt to prevent doctors receiving training in essential health service provision. We have seen evidence of hospital management receiving some unpleasant communications and people are trying to bully and intimidate doctors from having an educational event, and I find that disturbing.” She called for those who are anti-abortion to stop trying to delay moving forward.

Dr Boylan regularly countered claims that there was a crisis. Obviously, he said, the first months will be a test for everyone, and bumps have to be expected. Some calculations show that there will be enough GPs to provide the service, although whether they are scattered across and are accessible in all parts of the country remains to be seen. Concerns exist about access for rural women in particular.

Abortion as an opt-in service

It has been clarified again and again that there is no mandatory requirement on GPs to provide abortion services. It will be an “opt-in” service, which those who wish to and are trained to provide it can do. Women needing abortions can contact a 24-hour helpline with qualified staff who can direct her to providers who have opted in, as well as arrange access to non-directive counselling if requested, and direct women to clinical care for any complications post-abortion. A group called One Family won a contract to provide the telephone counselling service for “Crisis Pregnancy and Post-Abortion”, also due to start in 2019. However, this was a 20-hour per week contract based on counselling only. It’s not yet clear if the contract has been expanded or if more agencies will be contracted. The Health Services Executive will advertise the helpline number via social media, a dedicated website and via a national communications campaign.

Around 14 November, a contract for the provision of abortion services in community settings was agreed between the Irish Medical Organisation and the Minister for Health. On 17 November, GPs agreed to a €450 fee for a medical abortion, despite not yet being trained in delivering the service. Disappointingly, however, access to a medical abortion will involve three visits to the GP, up to nine weeks of pregnancy. GPs have all received letters asking them if they are interested in becoming a provider.

On 15 November it was announced that women and girls from Northern Ireland will be able to access abortion services in the Republic of Ireland in 2019.

The response of abortion rights supporters

Labour Senator Ivana Bacik became emotional during her first contribution on the bill, saying that after decades of campaigning on the issue, she felt an “overwhelming sense of relief”. She said that 29 years ago she and her colleagues in the Trinity College Students’ Union were threatened with prison for giving information on getting an abortion abroad to pregnant women.

The abortion rights movement has remained active throughout the parliamentary process, particularly fighting for progressive changes to the bill. But these were also rejected by Simon Harris. Lawyers for Choice, a legal advocacy group, voiced concern about what it called vague or restrictive language in cases where there is a risk to women’s lives or health, and they campaigned unsuccessfully to eliminate the mandatory three-day waiting period between the request for abortion and access to abortion pills or a surgical method.“For women in the remote countryside, or in violent and coercive relationships, for teenage girls living under the control of their parents or women who have difficulty travelling, it is very hard for them to see a doctor once, let alone have to come back again at least three days later,” said Mairead Enright of Lawyers for Choice.

The Abortion Rights Campaign based in Dublin published a 10-page submission to the parliament on 2 October 2018 which called for six conditions to be met by the new law, most of which (apart from the funding) have not been met or met only partially:

They also called on the parliament to base their debate and decisions on the following principles:

bodily autonomy

accessibility,

accountability and

evidence.

These principles can serve as important tools for monitoring and reviewing quality and accessibility of care once services are begun.

The International Campaign also wrote to Simon Harris on 10 November. We called on him to take abortion out of the criminal code, specifying more concretely that abortion in the first 12 weeks was at the woman’s request, giving women actual rights in law, and reducing the excessive verbiage on approval of abortion and increasing details about access and provision. We said it was a mistake to allow abortion only for fatal fetal anomaly and not also serious fetal anomalies and quoted at length what is permitted in most laws on this ground around the world. We criticised the fact that so much of the bill was spent on outlining the process of review of refusals of abortion, instead of ensuring that refusals could not act as barriers. And with many others we argued against the three-day mandatory delay and the required extra doctor’s appointments, which had no clinical value. We warned that so many barriers would mean women would continue to travel rather than fight the system. Little of what we said was taken account of.

avert vs. mitigate or reduce risk in cases where the ground for abortion is risk to health or life

certification of an abortion vs. the same practitioner having to provide it too

waiving the mandatory waiting period if it would mean the woman cannot access the abortion.

It seems it was always going to be too late to achieve the kind of bill the women’s movement wants, which Simon Harris claims he wanted too, but one he did not succeed in writing let alone trying to steer through parliament.

Others are more optimistic. Women’s rights activist Ailbhe Smyth said she thought there would be stumbles, but she believed that most providers were committed to making the new law work. “I think it’s very much about Ireland saying that a past that was very dark and very difficult, particularly for women, that that is behind us,” she said.